page_0367

366
Executive Department;
Mountgomery, Ala. April 9th. 1863.
Hon. James A. Seddon, Secretary of War, Richmond.
Sir; I herewith, hand you a copy of a letter, this day received from Col. Jn^o T. Morgan, Commandant of con-
conscripts, in the state of Alabama. By this letter is presented the question, whether the "County Superintendents of
Education" are liable to enrollment, as conscripts. Col. Morgan thinks they are. I differ with him in opinion, & refer the
question for your examination. It is an important question, as its decision will, materially, affect the State-
administration, & fix the status of a large number of officers, engaged in the civil department of the State Government.
The Military Code of Alabama was revised, & re-adopted in 1851. It was adopted as a peace establishment, as at
that time, no expectation nor apprehension of war was entertained; & Sh^d therefore, be regarded as an internal
provision, purely; & no construction should be placed upon it, which cannot be, fairly, said to be within the purpose or
intention of the State-Legislature which adopted it. I enclose you an extract from the code, which contains all
the provisions in it applicable to the question under consideration. You will see that "the Militia of the State
of the State of Alabama shall consist of each & every free, able-bodied, White male citizen, resident therein, who is, or Shall
be of the age of eighteen years, & under the age of forty-five years, "except those hereinafter named". The 2d Sec of the 2d
chapt. enumerates the exceptions-or exemptions. Congress, in the Conscript-act, has exempted the Legislative, Judicial & Executive
officers of the States, "except such State-officers as are - or may be declared liable to Militia duty." Now, as "County
Superintendents of Education" are Miliita-men, under the Military Code of Alabama, & are, by that Code, not exempted from
Militia duty in the State, it is, plausibly, urged that they are liable to enrollment under the Conscript law. If they are, then
all the following-named officers of the State are liable to enrollment, to-wit; The Secretary of State, The Comptroller of
public accounts, State Treasurer, Attorney-General, Solicitors of all the Judicial Circuits, Reporter, & Marshall of the
Supreme Court, County-Sheriffs, Jailors, & Coroners, County-Surveyors, Tax-assessors & collectors, members of the State
Legislature, Registers, & receivers of the Land-office, & the State Superintendent of Education. You will find none
of these officers enumerated in the list of Exemptions. You will agree with me, I think that to take all these
officers away from the State, & put them in the Army, would be, virtually, to break-up & destroy the State-
organization, & you will, further, agree with me, I doubt not, without controversy, that Congress possesses no power to
do such a thing, &, that in passing the Conscript act, did not intend to accomplish such a result. The
error, into which Col. Morgan has fallen, I suppose, is in assuming that the ^provisions in the^ Military Code to be a
Legislative declaration that these state-officers are liable to Militia duty, within the meaning & intent
of the Conscript-Act. Congress has no power to encroach upon State-organization, &, therefore,
discreetly disclaimed it by an express exemption of all the Legislative, Judicial, & Executive
officers of the States. But, inasmuch-as some of these officers might not, in the judgement
of the States, be needed at home, and as they might be voluntarily surrendered for the
Common Military defense, Congress excepted from the class of exemptions, such State-Officers, as
the States themselves should declare amenable to military duty. This declaration could be made
only by the Legislatures of the States affirming the liability of the particular officers - ex nomine.
The general provision in the Military Code of Alabama, adopted - long years ago, & with
exclusive reference to her own internal convenience, which embraces, as a Militia-man, every
white male citizen except certain State officers, therein mentioned, ought not and cannot
fairly, now be held to a be a Legislative declaration, such as Congress contemplated. That all the
State-officers, not enumerated should be liable to Military service in the armies of the
Confederacy. In 1851, when this Code was adopted, there were no such officers, as State - & County
Superintendents of Education, nor State-Commissioner, nor Registers nor Receivers of
the Land-offices. These offices have been created by subsequent legislation. As to them
there has been no Legislative declaration, in any shape or form. In this connection,
I will remind you that the Legislature of Alabama, at its last Session, removed the
exemption in the Military Code, in favor of "Justice of the Peace," and, by an
affirmative act, declared them liable to Militia duty. I enclose you, herein, a copy of the Act.
You will see that it, also, embraces other State-officers; to-wit, Constables, & Notaries
public. If you will now refer to the Military Code of the State, you will see that neither
construction be correct, these officers were already liable to conscription, & no further
State-Legislation was required to authorize their enrollment. [many stricken words]
Such, however, was not the view entertained by the Legislature.
& to authorize their enrollment as Conscripts, under the Act of Congress, they deemed
it necessary to declare their liability to Militia duty, by an affirmative Legislative
act, enumerating the officers. [silcrow] The word "declared" in the Conscript-Act, has a
signification, which must be ascertained, by reference to the powers of Congress & the rights
of the States.